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Michael Arch

Michael Arch

Michael Ephraim-Arch has not set their biography yet

Posted by on in General

Followers of this Website will recall that we have reviewed a number of cases where New Zealand citizens who have lived in Australia since early childhood have had their visas cancelled on character grounds. 

In the majority of those cases, challenges that have been brought against the visa cancellations have not been successful. 

This is what makes a recent decision of the Administrative Appeals Tribunal, in the case of Engi and Minister for Immigration and Border Protection (Migration) (2017) AATA (12 September 2017) unusual and remarkable. 

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Who can meet the definition of being a “dependent child” in order to be eligible for a Child Residence visa? 

Clause 1.03 of the Migration Regulations 1994 defines the term “dependent child” to mean a child or step-child who is not in a spousal or de facto relationship and is not engaged to be married, and who falls into one of 3 distinct categories: 

* (a) the child has not yet turned 18 years of age;

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It’s really amazing when you have a look at the reported cases coming out of the AAT and the Federal Courts.

Based on what is reported on Austlii, it surely appears that visa refusals and visa cancellations on character grounds are becoming a more and more important element of migration law practice.

Is there any way to predict the outcome?

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Suppose that a law enforcement agency provides material to the Department on the basis that the material be treated as confidential information.

Suppose then that the Minister has regard to that material when considering whether to cancel a visa on character grounds.

Can the Minister be required to disclose that information to a court in the context of legal proceedings brought to challenge the visa cancellation decision of the Minister? 

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Suppose a person has had their visa cancelled on character grounds.

Suppose further that the person is owed protection obligations under the Refugees Convention, and therefore cannot be returned to his home country, or removed to a third country?

Is the person doomed to a period of indefinite detention?

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